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Dear Yeshiva Family:
The Halacha of Enforcing Divorce for the Mitzvah of Pru Urevu "And Sarai, Avram's wife, took Hagar the Egyptian, her maidservant, at the end of ten years of Avram's dwelling in the land of Canaan, and gave her to Avram her husband, to him as a wife." (Bereishis 16:3)
In this week's parshah, we see Avraham Avinu facing the trial of infertility, leading him to take Hagar as a second wife in the hope of having children. The Gemara (Yevamos 64a) derives from here that if a couple remains childless after ten years of marriage, they must divorce so the husband may remarry and fulfill the mitzvah of Pru Urevu—be fruitful and multiply.
Many Rishonim[1] explain that this ruling is based on the general principle that Bais Din (Jewish court) enforces the fulfillment of mitzvos, and procreation is a mitzvah just like any other mitzvah. Just as Bais Din would physically compel someone to shake a lulav on Sukkos if they did not want to, they would compel a person to seek a new marriage if they are childless. While this ruling is codified in the Shulchan Aruch (EH 1:3), the Rema notes that, nowadays, Bais Din does not enforce this, explaining that it has been a long time since they imposed such rulings.
This raises a question: if Bais Din has the authority and requirement to enforce such mitzvos, why has it chosen to be "lenient" specifically regarding this mitzvah? If enforcement is indeed the ideal, why did it stop?
Understanding the Rule of Enforcing Divorce The initial rationale seems clear—Bais Din could enforce the mitzvah of Pru Urevu, just as they do for other mitzvos. However, several considerations suggest that enforcing divorce for the sake of this mitzvah is different from enforcing other commandments.
First, there is an interesting observation about the Sefer HaChinuch's approach to this mitzvah. While the Chinuch mentions enforcement in the context of bringing the Korban Pesach (Mitzvah 6), he does not address enforcement for Pru Urevu, the first mitzvah listed. This seems odd, as enforcement for it is discussed explicitly in the Gemara. Why would the Chinuch delay discussing this concept until a later mitzvah?
Additionally, the Ritva in Yevamos brings an opinion that if the couple has had even one child, Beis Din would not require a divorce, even if they haven't fully completed the mitzvah of Pru Urevu, which requires at least one son and one daughter. This appears to conflict with the Gemara's directive. Why should one child lessen the need for divorce if Pru Urevu has not yet been fulfilled?
These questions suggest that enforcement of this mitzvah might have a unique quality not shared by other mitzvos.
The Challenges in Compelling Marriage Enforcing the mitzvah of marriage for the sake of procreation presents a challenge. For one, there's no immediate time constraint on this mitzvah; a person could always argue that he plans to fulfill it soon. Additionally, one need not spend more than one-fifth of his possessions to fulfill a positive mitzvah. Emotional distress could also factor into this limit, and compelling someone to divorce any wife, and certainly a wife after a decade of shared struggles with infertility could create tremendous emotional distress and have it considered as exceeding that threshold. Moreover, enforcing divorce is especially complex since there's no guarantee that a subsequent marriage would yield children. Can Bais Din enforce an act which will only possibly result in the performance of a mitzvah? Forcing a couple into an institution of marriage does not necessarily even mean they will procreate. Indeed, enforcing the divorce is an act that is even further removed from any eventual subsequent mitzvah, so how do we know that Bais Din has the authority in this case, since enforcement doesn't guarantee the eventual performance of the mitzvah?
Furthermore, why force a divorce instead of encouraging polygamy, as Avraham Avinu did in this week's parshah? Although polygamy is no longer practiced today, it was acceptable in the times of the Gemara, so why was divorce enforced over the option of marrying a second wife?
In fact, some Rishonim suggest that although Bais Din may enforce divorce, they do not compel remarriage. The Tosfos Yom Tov (beginning of Yevamos) explains that since a person deeply dedicated to Torah study may be permitted to delay marriage, Bais Din cannot compel remarriage. Alternatively, R' Elchanan Wasserman (Koveitz Shiurim Kesuvos 213) explains that we cannot force someone to marry any specific person because perhaps they may not like each other. But then this raises the question of why are we forcing the divorce?
A Distinction Between Two Mitzvot: Pru Urevu and Lesheves The Sefer Nehora Deoraysah offers an innovative approach by distinguishing between two mitzvos related to procreation: Pru Urevu and Lesheves. The mitzvah of Pru Urevu ("be fruitful and multiply") is incumbent upon every Jewish male, as stated in Bereishis (1:27-28, 9:7). However, there is an additional mitzvah called Lesheves—"to inhabit the earth"—based on a pasuk in Yeshayahu (45:18), where Hashem says that He created the world to be populated.
Tosfos in Bava Basra (13a) discusses a case of a half-slave, half-free individual, for whom marriage is impossible, for he cannot marry a free woman, as she cannot be married to his "slave" half, and he cannot marry a maidservant as she cannot be married to his "free half." (This can occur where someone was owned by two parties and one of those parties freed their half of the slave). The Gemara asserts that his master must free him so he can fulfill the mitzvah of Lesheves. Tosfos questions why the Gemara sources the mitzvah of Lesheves and not Pru Urevu, and explains that Pru Urevu is an individual's mitzvah, and need not be fulfilled if one is incapable of doing so; just like any other mitzvah one cannot fulfill where it is impossible for him to fulfill. However, Lesheves, says Tosfos, is a "big mitzvah" that overrides other considerations and therefore we will free a slave so that the slave can fulfill this mitzvah! Tosfos (Avodah Zara 13a) also says one can leave Eretz Yisrael only for "big mitzvos" like Lesheves, and here as well he does not mention Pru Urevu.
The Nehora Deoraysah explains this concept of a "big mitzvah" by differentiating between Pru Urevu which is a personal mitzvah, while Lesheves is a communal mitzvah, incumbent upon all of humanity to ensure that the world is populated. Lesheves instructs humanity as a whole to populate the world and is a communal responsibility on the Jewish people collectively to ensure the world is populated.
To bring out this point in a stronger way, we can ask a question. R' Chaim Soloveitchik zatzal asks why is it permitted for the master to free the slave, for by freeing a slave one is violating the mitzvas aseh (positive commandment) that one must work his slaves and not free them. Saying the slave has his own personal mitzvah of Pru Urevu should not be a reason enough for the master to violate his aseh? R' Chaim answers along the above lines. True, if it were only the mitzvah of Pru Urevu this would be a good question, but Lesheves is a mitzvah given to everyone as a people, it's a mitzvah upon humanity, so the master's mitzvah of Lesheves regarding the slave overrides the master's mitzvah of not freeing a slave! Incredible!
Bais Din's Unique Role in Lesheves According to this distinction, perhaps we can explain that Beis Din's enforcement to divorce may apply primarily to Lesheves, not Pru Urevu. As explained, there are many reasons not to enforce the Mitzvah of Pru Urevu, but the mitzvah of Lesheves is different. The responsibility to populate the world rests with the community, and this rule of enforcing divorce was not based on the person's mitzvah; rather it is Bais Din acting to fulfill its own communal obligation by compelling divorce, not merely enforcing this particular individual's mitzvah[2].
We can now address all of our difficulties before. We asked that there are many reasons not to force a person to get married, and certainly not to get divorced from his wife, yet we can explain that indeed this forcing is not the general practice of forcing that a Bais Din does to compel a person to keep a mitzvah; rather this forcing is because it is incumbent on the Bais Din themselves to make sure that everyone is performing the mitzvah of Lesheves. Just as Lesheves creates a requirement that the master has a personal mitzvah to free his slave so the slave will procreate, so too must the Bais Din do everything in their power to get this person to have children, not for the person's individual mitzvah, but for their own communal mitzvah of ensuring Lesheves!
Since Bais Din is enforcing its own mitzvah, it is less concerned about individual hardship or expense. Even if there is uncertainty about the success of a second marriage, Bais Din can still compel the divorce, as their duty to fulfill Lesheves overrides these concerns. So even though it is true that technically for the mitzvah of Pru Urevu, the person does not need to divorce his wife and can marry a second wife while still married to the first, but that is not so practical (even before the decree of Rabbeinu Gershom that polygamy is forbidden). Practically speaking, it will be hard for a person to marry a second wife while still married to the first. Therefore, Bais Din will force a divorce because it has a vested interest in having this person procreate; its own mitzvah of Lesheves! Perhaps Bais Din will stop short of forcing a new marriage, because that itself may not end up in a good relationship, but at least to set them up the person with the best possible chances is incumbent upon it. Even if there is doubt if they will ever find a better shidduch, since it is entirely possible, Bais Din will still force the divorce for its own mitzvah!
For this reason, Bais Din can force a person even if we assume that it is worth more to him than a fifth of his possessions. The mitzvah of Lesheves is not a regular mitzvah like the other mitzvos. This mitzvah is a 'big mitzvah', and therefore there are different threshholds.
This also clarifies why the Sefer HaChinuch does not mention compulsion for Pru Urevu—because the compulsion is only for Lesheves. Additionally, the Ritva's leniency after one child might be based on a partial fulfillment of Lesheves, which is sufficient to reduce the need for compulsion.
Why Bais Din No Longer Enforces Divorce With this framework, perhaps we can understand the Rema's ruling that Bais Din has ceased enforcing this mitzvah. Since Lesheves is a communal obligation, it would require a central Bais Din that represents the entire Jewish people, like the Sanhedrin of old or the Bais Din in the times of Mashiach. Only such a universally recognized court could impose such a ruling on individuals. Until we have such a Bais Din, local courts do not possess the authority to enforce Lesheves at the cost of individual pain or hardship.
Hopefully, this sheds light on a highly interesting topic. May all the prayers of those waiting for children be answered speedily! Wishing you a meaningful and peaceful Shabbos,
Rabbi Moshe Revah Rosh HaYeshiva, HTC - Beis HaMidrash LaTorah moshe.revah@htc.edu
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[1] See the Rosh 6:15, Ritva, Nemukei Yosef and others. [2] There are several examples of Bais Din forcing a mitzvah that is really their mitzvah – See Kehilas Yaakov (Kesuvos 28).
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